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EXHIBIT 10.08
EMPLOYMENT AGREEMENT
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AGREEMENT made as of the 15th day of April, 1998 by and between
Office Centre Corporation, a Delaware corporation (hereinafter referred to as
"OCC"), with an office in New York City, and Xxxxxx Xxxxxxxxxxx (hereinafter
referred to as "the Executive"), residing at 000 Xxxxxxxxxx Xxxxx, Xxxxxxxxxx,
XX 00000.
W I T N E S E T H:
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WHEREAS, OCC wishes to engage the services of the Executive to
continue to serve as an employee of OCC or its subsidiaries;
WHEREAS, the Executive desires to serve as an employee on the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter contained, the parties agree as follows;
1. PERFORMANCE OF DUTIES. The Executive shall perform such
employment duties for OCC or its subsidiaries as may be prescribed by the Board
of Directors of OCC. The Executive shall report directly to the Board of
Directors of OCC. Until such time as he is replaced by the Board of Directors
of OCC, the Executive shall serve as the President and Chief Executive Officer
of UDI Corp., a wholly-owned subsidiary of OCC ("UDI"). At such time as he is
replaced as President and Chief Executive Officer of UDI, the Executive shall
become the Chairman of UDI and in such capacity his sole responsibility shall
be to facilitate a smooth
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transition of the duties of chief executive from Executive to the new President
and Chief Executive Officer.
2. COMPENSATION. As compensation for his services hereunder, the
Executive shall receive:
(a) An annual salary equal to $200,000 per year, such amount to
be paid to the Executive semi-monthly;
(b) A yearly salary review by the Board of Directors to
determine if said annual salary shall be increased, but in no event shall said
salary be decreased; and (c) A yearly cash bonus determined by the Board of
Directors of OCC based upon the performance of OCC.
3. FRINGE BENEFITS. In addition to the provisions of Paragraph
2(a), as part of his compensation, the Executive shall be entitled to the
following fringe benefits:
(a) LIFE INSURANCE. OCC shall expend $25,000 in annual premiums
to obtain an insurance policy on the life of Executive, which policy shall be
chosen by the Executive. Executive shall have the right to designate the
beneficiary thereof.
(b) SALARY CONTINUATION DURING DISABILITY. If the Executive for
any reason becomes disabled, so that he is unable to perform his duties
hereunder in the opinion of OCC due to physical or mental illness or other
cause for either (i) a period of 90 consecutive days or (ii) 180 days during
any 360-day period ("Disabled"), the Executive's employment under this
Agreement shall terminate. OCC shall nevertheless continue to pay him periodic
salary payments that he would have been entitled to receive under Section 2(a)
until the earlier to occur of (x) the time that this Agreement would have
expired but for such termination and (y) the time
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that he is no longer Disabled. Until such period of disability shall commence,
the Executive shall be entitled to receive his regular salary payments provided
he is not in default under this Agreement.
4. EXPENSE REIMBURSEMENT. The Executive shall be entitled to the
use of a corporate phone card and credit card for business expenses and shall
be entitled to reimbursement from OCC for all reasonable out-of-pocket business
expenses incurred by him in connection with the performance of his duties
hereunder, subject to compliance with OCC's rules and practices relating to
expense reimbursement.
5. DURATION AND TERMINATION OF EMPLOYMENT.
(a) Unless the Executive's employment under this Agreement is
otherwise terminated, the term of this Agreement shall commence on the date
hereof and end on the earlier of (i) the date of an initial public offering of
OCC's common stock in which the Executive (including transferees of his OCC
common stock) realizes not less than $1,000,000 from the sale of his OCC common
stock or (ii) August 15, 2000. If (i) there has not been a public offering of
OCC's common stock prior to August 15, 2000, or (ii) the Executive's employment
under this Agreement has not been otherwise terminated, then this Agreement
shall be extended, subject to the approval of the Board of Directors, for
further one-year terms unless either party advises the other by written notice
at least six months before the end of the then current term of its intention to
cancel the Agreement.
(b) OCC may terminate the employment of the Executive for Cause
(defined herein) and notice of such termination shall be sent to Executive.
"Cause" shall mean the
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Executive's (i) willful misconduct, (ii) grossly negligent misconduct in the
performance of his duties to the Corporation, (iii) material breach of his
obligations under this Agreement, (iv) failure to comply with the lawful
instructions of the Board of Directors or (v) conviction of, or plea of NOLO
CONTENDERE to, a felony; or conviction of, or plea of NOLO CONTENDERE to, a
crime involving moral turpitude under federal, state or local laws.
Notwithstanding the foregoing, (i) a crime involving tax matters shall not be
considered a crime involving moral turpitude; and (ii) Cause shall not include
any event, act or omission which occurred prior to the date hereof.
(c) If, at any time, OCC terminates the employment of the
Executive for Cause, the Executive resigns his position for any reason, or the
Executive dies, the Executive (or his estate) shall be entitled to receive only
the unpaid portion of his salary which has accrued to the date of such
termination, resignation or death.
(d) If, at any time, OCC terminates the employment of the
Executive for any reason other than for Cause ("Non-Cause Termination"), the
Executive shall be entitled to receive the greater of (i) the periodic salary
payments that he would have been entitled to receive under Section 2(a) until
this Agreement would have expired but for such termination (assuming no
extension under Section 5(a)); and (ii) $200,000 (or such greater amount that
is the Executive's annual salary at the time of such termination), which amount
in (d)(ii) to be paid at the time of termination. With respect to the payments
provided in subsection (d)(i) of this Section 5, the Executive shall be
entitled to receive (A) at the time of termination, a lump sum payment equal to
$200,000 (or such greater amount that is the Executive's annual salary at that
time) in lieu of one year's periodic payments and (B) commencing one year from
the date of
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termination, the remaining periodic payments to which the Executive is entitled
(after adjusting for the lump sum payment referred to in (A)), such payments to
be made semi-monthly.
(e) If the Executive becomes disabled, no payments shall be
owing by OCC other than those specified in Section 3(b).
6. COVENANTS OF THE EXECUTIVE.
(a) NONCOMPETITION. From the date hereof through the Non-compete
Termination Date (as defined below), the Executive shall not, directly or
indirectly, engage in or be associated with any entity which engages in a
business which is competitive with the business or activities of OCC and its
subsidiaries, within a 25 mile radius of any business location of OCC or any of
its subsidiaries, whether as a director, officer, employee, agent, consultant,
partner, owner, independent contractor or otherwise. OCC and the Executive
hereby acknowledge that nothing contained herein shall prohibit the Executive
from making investments in other entities or businesses, PROVIDED, that such
entities or businesses are not engaged in activities which are competitive with
the business and activities of OCC and its subsidiaries. The Executive shall
refrain from making any investment in, or receiving compensation or other
payment from, any entity or business which is competitive with the business or
activities of OCC and its subsidiaries. Notwithstanding the foregoing, the
Executive's beneficial ownership of less than 1% of the outstanding capital
stock of a publicly traded company, whether or not such company is competitive
with OCC and its subsidiaries, shall not, in and of itself, be deemed to be
activities which are competitive with the business and activities of OCC and
its subsidiaries.
"Non-compete Termination Date" shall mean:
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(i) If the Executive's employment terminates upon the
expiration of the period specified in Section 5(a), the first anniversary of
the date on which the Executive's employment expires as described in Section
5(a);
(ii) If the Executive is terminated for Cause or resigns
for any reason, the first anniversary of the effective date of such resignation
or termination for Cause;
(iii) If the Executive's employment is terminated by OCC
pursuant to a Non-Cause Termination, the later of (A) one year from the
effective date of such termination, and (B) the date on which the Executive's
employment would have terminated if the term of this Agreement would have
continued until expiration; and
(iv) If the Executive becomes Disabled, the date on which
no further payments are owing under Section 3(c).
(b) NONSOLICITATION. From the date hereof through the Non-compete
Termination Date, the Executive shall not, and shall cause each business or
entity with which he shall become associated in any capacity not to, (i)
solicit for employment or employ any person who is then, or who was at any time
six months prior to the date of such termination, employed by OCC or its
subsidiaries, other than Xxxxx Xxxxxxxxxxx or (ii) solicit business which is
competitive with OCC's business from any current customer or supplier of OCC or
its subsidiaries or any person or entity who was a customer or supplier of OCC
or its subsidiaries at any time within six months prior to the date of such
termination.
(c) CONFIDENTIALITY. The Executive agrees and acknowledges that the
Confidential Information (as defined below) of OCC and its subsidiaries is
valuable, special and
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unique to its business; that such business depends on such Confidential
Information; and that OCC wishes to protect such Confidential Information by
keeping it confidential for the use and benefit of OCC and its subsidiaries.
Based on the foregoing, the Executive agrees to undertake the following
obligations with respect to such Confidential Information:
(i) the Executive agrees to keep any and all Confidential
Information in trust for the exclusive use and benefit of OCC and its
subsidiaries;
(ii) the Executive agrees that, except as required by
applicable law or as authorized in writing by OCC, he will not, at any time
prior to the second anniversary of the termination of his employment hereunder,
disclose, directly or indirectly, any Confidential Information of OCC or its
subsidiaries;
(iii) the Executive agrees to take all reasonable steps
necessary, or reasonably requested by OCC, to ensure that all Confidential
Information is kept confidential for the use and benefit of OCC and its
subsidiaries; and
(iv) the Executive agrees that, upon termination of his
employment hereunder or at any other time as OCC may in writing request, he
will promptly deliver to OCC all materials constituting Confidential
Information (including all copies thereof) that are in his possession or under
his control. The Executive further agrees that, if requested by OCC, to return
any Confidential Information pursuant to this subparagraph (iv), he will not
make or retain any copy or extract from such materials.
For purposes of SECTION 6(C), "Confidential Information" means any
and all information developed by or for OCC and its subsidiaries of which the
Executive gains or has
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acquired knowledge during or prior to the term of his employment with OCC by
reason of his employment with OCC that is (A) not generally known in any
industry in which OCC and its subsidiaries is or may become engaged or (B) not
publicly available. Confidential Information includes, but is not limited to,
any and all information developed by or for OCC and its subsidiaries concerning
plans, marketing and sales methods, customer lists, materials, processes,
software, procedures, devices, plans for development of products, services or
expansion into new areas or markets, internal operations, and any trade secrets
and proprietary information of any type owned by OCC and its subsidiaries,
together with all written, graphic, electronic and other materials relating to
all or any part of the same.
(d) REMEDIES. The Executive acknowledges and agrees that the
covenants and obligations of the Executive contained in this SECTION 6 relate
to special, unique and extraordinary matters and are reasonable and necessary
to protect the legitimate interests of OCC and that a breach of any of the
terms of such covenants and obligations will cause OCC irreparable injury for
which adequate remedies at law are not available. Therefore, the Executive
agrees that OCC shall be entitled to an injunction, restraining order, or other
equitable relief from any court of competent jurisdiction, restraining the
Executive from any such breach. OCC's rights and remedies under this SECTION
6(D) are cumulative and are in addition to any other rights and remedies OCC
may have at law or in equity.
7. EFFECT OF MERGER, TRANSFER OF ASSETS, OR DISSOLUTION. This
agreement shall not be terminated by any:
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(a) Merger or consolidation where OCC is not the consolidated or
surviving corporation;
(b) Transfer of all or substantially all of the assets of OCC; or
(c) Voluntary or involuntary dissolution of OCC.
In the event of any such merger or consolidation or transfer of
assets, the surviving or resulting corporation or the transferee of OCC's
assets shall be bound by and shall have the benefit of the provisions of this
agreement; OCC shall take all actions necessary to insure that such corporation
or transferee is bound by the provisions of this agreement.
8. NON-ASSIGNABILITY. Except as provided in Section 7 above, neither
party shall assign its rights and obligations under this contract without the
written approval of the other party, which approval may be withheld for any
reason or no reason.
9. INDEMNITY. OCC shall indemnify Executive and hold him harmless
for all acts or decisions made by him in good faith that are not grossly
negligent while performing services for OCC or any of its subsidiaries. This
indemnity shall survive the termination of this Agreement and shall remain an
obligation of OCC at all times thereafter until claims with respect to such
acts or decisions are time barred as a matter of law. OCC shall also use its
best efforts to obtain coverage for him under any insurance policy now in force
or hereafter obtained during the term of this Agreement covering the other
officers and/or directors against lawsuits. OCC shall pay all expenses
including attorney's fees, incurred by the Executive in connection with the
defense of such act, suit or proceeding and in connection with any related
appeal including the cost of settlement.
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10. TIME TO CURE. In the event either party fails to perform any of
either his or its respective obligations hereunder and if such failure would
otherwise constitute a default under this agreement, the non-defaulting party
shall give written notice specifying such obligations to the defaulting party
who shall have five (5) business days after receipt of such notice to cure the
specified default; PROVIDED that an action or failure to act that constitutes a
default and that has been described with reasonable particularity may not be
cured more than once.
11. ARBITRATION. Any controversy or claim arising out of, or
relating to this Agreement, or its breach, shall be settled by arbitration in
the City of New York in accordance with the then governing rules of the
American Arbitration Association. Judgment upon the award rendered may be
entered and enforced in any court of competent jurisdiction. The prevailing
party shall be entitled to reasonable attorneys' fees and expenses.
12. NOTICES. Any written notice required or permitted to be given
under any provision of this Agreement shall be deemed to have been given (a) if
to the Executive, when sent by Registered or Certified Mail (return receipt
requested) in a sealed envelope addressed to him at his last known residence
address as shown on OCC's records or when delivered by hand to him or, in his
absence, in a sealed envelope to an adult member of his household, and (b) if
to OCC, when sent by Registered or Certified Mail (return receipt requested) in
a sealed envelope addressed to the OCC or delivered by hand at its then
existing executive offices, ATTENTION: Counsel.
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13. ENTIRE AGREEMENT; ENFORCEABILITY; PARTIAL INVALIDITY.
(a) This Agreement contains the entire agreement of the parties with
respect to the subject matter hereof and supersedes all prior agreements and
understandings between them relating to its subject matter. No modification or
waiver of any of the provisions of this Agreement shall be effective unless set
forth in a writing signed by the party against whom the same is sought to be
enforced. The waiver by either party of any
breach of this Agreement by the other party shall not operate or be construed
as a waiver of any subsequent breach hereof by such other party.
(b) The invalidity or unenforceability of any particular provision
of this Agreement shall not affect the other provisions, and this Agreement
shall be construed in all respects as if such invalid or unenforceable
provisions were omitted.
14. INTERPRETATION OF AGREEMENT. This Agreement is made in the State
of New York and its validity and interpretation shall be governed by the laws
of such state, without giving effect to conflicts of law principles. The
section and subsection headings in this Agreement are for convenience only and
shall be disregarded in any interpretation of this Agreement.
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15. EFFECTIVE DATE; EFFECT ON OTHER ARRANGEMENTS.
(a) This Agreement shall be effective on the date set forth in
the preamble hereof.
(b) All employment agreements and all other compensation
arrangements that at that time are in effect between the Executive and OCC and
any of OCC's subsidiaries (including but not limited to UDI Corp. and UDI II
Corp.) shall be automatically terminated. The Executive agrees to take all
actions, and OCC agrees to take and to cause its subsidiaries to take all
actions, necessary to effectuate the provisions of this Section 15(b).
IN WITNESS WHEREOF, OCC has caused this Agreement to be executed in
its name and on its behalf by its Chief Executive Officer and the Executive has
signed this Agreement as of the day and year first above written.
OFFICE CENTRE CORPORATION
By: /s/Xxxxxx X. Xxxxxx, Xx.
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Xxxxxx X. Xxxxxx, Xx., President
EXECUTIVE:
/s/Xxxxxx Xxxxxxxxxxx
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Xxxxxx Xxxxxxxxxxx
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